Citigroup Pty Limited v Middling (No.2) [2014] NSWSC 651

Citigroup Pty Limited v Middling (No.2) [2014] NSWSC 651

Because Mr Quy and Mr Elliott represented, consistently with their duty of candour, that determining the personal costs question would require traversing privileged factual matters to Mr Middling's detriment, and because determining that issue on material not disclosed to the other parties was undesirable as a matter of natural justice, the personal costs question should be stood over for determination by Adamson J after resolution of the substantive proceedings. In the meantime, the defendant should pay the plaintiff's and first cross-defendant's costs thrown away by the amendment and adjournment on an indemnity basis because those costs were caused through no fault of those parties.

Jurisdiction
Australia
Judgment Date
22 May 2014
Procedural Posture
Costs / On the Papers; Determination of Costs Consequences of Amendment and Adjournment, Including Whether Personal Costs Orders Against the Defendant's Legal Representatives Should Be Determined Before Final Resolution
Outcome
Defendant ordered to pay indemnity costs thrown away by the amendment and adjournment; question of personal costs orders against Mr Quy and Mr Elliott stood over.
Legal Topics
['personal Costs Orders Against Legal Representatives' 'indemnity Costs' 'client Legal Privilege' 'natural Justice' 'adjournment Caused by Amendment']
['costs' 'civil Procedure' 'legal Profession'] ['personal Costs Orders Against Legal Representatives' 'indemnity Costs' 'client Legal Privilege' 'natural Justice' 'adjournment Caused by Amendment']

Case Brief

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Procedural Posture

Costs / On the Papers; Determination of Costs Consequences of Amendment and Adjournment, Including Whether Personal Costs Orders Against the Defendant's Legal Representatives Should Be Determined Before Final Resolution

Legal Issues

  1. 1 ['Whether the question of personal costs orders against Mr Quy and Mr Elliott should be determined before the substantive proceedings are determined' 'Whether determination of personal costs orders would require disclosure of privileged communications to the potential detriment of Mr Middling' 'Whether the Court should review allegedly privileged material without disclosure to the other parties' "Whether the defendant should pay the plaintiff's and first cross-defendant's costs thrown away by the amendment and adjournment on an indemnity basis"]

Ratio Decidendi

Because Mr Quy and Mr Elliott represented, consistently with their duty of candour, that determining the personal costs question would require traversing privileged factual matters to Mr Middling's detriment, and because determining that issue on material not disclosed to the other parties was undesirable as a matter of natural justice, the personal costs question should be stood over for determination by Adamson J after resolution of the substantive proceedings. In the meantime, the defendant should pay the plaintiff's and first cross-defendant's costs thrown away by the amendment and adjournment on an indemnity basis because those costs were caused through no fault of those parties.

Court Disposition

Defendant ordered to pay indemnity costs thrown away by the amendment and adjournment; question of personal costs orders against Mr Quy and Mr Elliott stood over.

Orders

  • ["Order the defendant to pay the plaintiff's and the first cross-defendant's costs occasioned by and thrown away by the amendment, including the costs of the hearing on 22 and 23 April 2014 and the costs of the adjournment of the hearing of the matter, on an indemnity basis." "Stand over the question whether Mr Quy...